myawanga mwiyoha vs republic 1980 tzca 103 11 june 1980

IN THE C O U R T OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: Mustafa, Aq.C.J.. Mwakasendo, J.A. and K i s angaj_..J«A.^ ) CRIMINAL APPEAL NO. 12 OF 1980 B E T W E E N MNYAWANGA s/o MWIYOHA . . . . . • « « - • • • • • • APPoJLAN1 A N D THE REPUBLIC „ . . - . = . = ° . - - » - • • « • • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Morogoro) (Makame, J.) dated the 14th day of August, 1978, in CRIMINAL SESSIONS CASE NO. 5 OF 1978 JU DGMENT OF THE COURT MUSTAFA, .Aq.C.J-: There is no dispute that the appellant killed the deceased, with whom he was living at the time. The only issues before this Court are (1) whether the appellant was insane and (2) whetho he killed under provocation. The appellant had stated in his unsworn statement thnt he was mentally sick and that his sister P.W.4 Nyago and P.W.5 Tommy his brother-in-law both knew of his sickness. However both P.W.4 and P.W.5 categorically denied that the appellant hac any mental illness at any time. After the killing the appellant immediately disappeared from that place, and returned to his own home at Dodoma, and went into hiding. That attitude and conduct clearly indicated that he was fully aware of what he had done and was wholly inconsistent with his allegation that he w f s insane. As to the issue of provocation, according to the appellant himself, the deceased was alleged to have abused him by calling him "your mother's vagina". He did not say why she abused him. In any event, even if she did utter those words, they could not possibly amount to provocation to cause the anpellant to cut - 2 - the deceased a number of times to death with a simo. In fact the trial judge disbelieved the appellant, and was of the view that this allegation was an afterthought. We are satisfied that the conviction was justified, and dismiss the appeal. DATED at DAR ES SALAAM this 11th day of June, 1900„ A. MUSTAFA Ag. CHIEF JUSTICE Yo M. MWAKASENDO JUSTICE OF APPEAL R« H. KISANGA JUSTICE OF APPF./n. certify that this is a true copy of the origir .. ( G- A. RWELENGERA ) \ DEPUTY REGIs TRAi\ R